VALDERRAMA v NORTH NEGROS December 18, 1925, Villamor, J.

This appeal involves an action to restrain the owner of dominant estate to use the servient estate contrary to agreed use per contract Legal Doctrine: The owner of the dominant estate (DE), in making on the servient estate (SE) the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome. As the easement was created for the benefit of the corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it may deem fit, according to the needs of the central. Facts:

1.

Nov 17, 1916, several hacienda owners in Manapla, Occidental Negros entered into a milling contract with Miguel Osorio wherein:

a.

Osorio will install a sugar central in Manapla with a minimum capacity of 300 tons, for grinding and milling of all the sugar cane to be grown by the hacienda owners

b.

Hacienda owners will furnish the central all the canes they might produce in their estates for 35 years from the execution of the contract

2.

Defendant North Negros Sugar Co. acquired the rights and interest of Osorio in the milling contract.

3.

After 2 years, plaintiffs who were hacienda owners (Catalino Valderrama, Emilio Rodriguez and Santos Urra and others) entered into other milling contracts with North Negros identical with the first one made with Osorio (above).

4.

Urra transferred to Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed by them.

5.

Hacienda owners could not furnish sufficient cane for milling, as required by the capacity of the sugar central. Because of this, North Negros made other milling contracts with various hacienda owners of Cadiz, Occidental Negros, in order to obtain sufficient cane to sustain the central.

6.

Plaintiffs filed a complaint, alleging that the easement of way, which each of them has established in his respective hacienda, was only for the transportation through each hacienda of the sugar cane of the owner thereof.

7.

Defendant: It had the right to transport to its central upon the railroad passing through the haciendas of the plaintiffs, not only the sugar cane harvested in said haciendas, but also that of the hacienda owners of Cadiz. In its answer against the amended complaints, it stated that: Plaintiffs granted the defendant, for the period of 50 years from the date of the contracts, an easement of way 7 meters wide upon the lands of the plaintiffs for the construction and operation of a railroad for the transportation of sugar cane;

a.

b.

Said easement of way was established without any restriction whatsoever, as regards the ownership of the cane to be transported over the said railroad;

c.

Said contract was then in full force and effect and had never been annulled or modified.

8.

Trial Court decision: In favor of plaintiffs. Defendant had no right to pass through the lands of the plaintiffs for the transportation of sugar cane not grown from any of the haciendas of the plaintiffs.

9.

Defendant appealed.

Issue: What is the extent of the easement of way which the plaintiffs have established in their respective haciendas in favor of the defendant? Held/Ratio: The answer to the question depends upon the interpretation of the clause of the contracts of the plaintiffs stating that:

an easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby established in favor of the 'North Negros Sugar Co., Inc.,' upon their estate hereinafter described, at such place as said corporation may see fit for the construction of a railroad.

1.

Plaintiffs: Clause is ambiguous. They have the right to introduce extraneous evidence to explain the true intent of the parties. It may applied to the transportation of the cane of the plaintiffs or other producers, which is contrary to the intent of the contracting parties.

SC: Said clause is clear enough in its terms to express what the parties have intended to agree upon.

a.

Had the clause mentioned only an "easement of way," there might be a doubt as to whether or not the easement of way is for pedestrians, horsemen or carriages.

b.

But when the clause says: "easement of way 7 meters wide for the period of 50 years for the construction of the railroad," there can be no doubt about what the contracting parties have agreed upon

c.

It is clear that the cane of the plaintiffs was to be transported upon the railroad to the central; but to limit the use of the road exclusively to the cane of the plaintiffs and within their respective haciendas would make the contract in question ineffective, except as to the hacienda which is contiguous or nearest to the central.

d.

The object of such a milling contract, from which arises the easement in question, is undoubtedly to obtain mutual benefit to the procedures of sugar cane and the corporation putting up the central.

i.

The contract could not produce any benefit to the parties, if the explanation given by the plaintiffs would be admitted, that it was only in favor of their respective haciendas. Such an explanation is inadmissible because it is contrary to the object of the milling contract.

e.

It is against the nature of the easement to pretend that it was established in favor of the servient estates, because it is a well settled rule that things serve their owner by reason of ownership and not by reason of easement.

f.

This is a case of an easement for the benefit of a corporation, voluntarily created by the plaintiffs upon their respective estates for the construction of a railroad connecting said estates with the central of the defendant.

i.

Once the road is constructed, the easement is apparent because it is continuously exposed to view by the rails which reveal the use and enjoyment of said easement.

ii.

As the easement was created for the benefit of the corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it may deem fit, according to the needs of the central.

iii.

If the plaintiffs do not produce sufficient cane to cover the capacity of the central, it would be unjust to impose upon the defendant corporation the burden of maintaining a central, prohibiting it to obtain from another source sufficient cane with which to maintain its business.

2.

Plaintiffs: By transporting upon the road, through the servient estates (SE), the cane of the planters of Cadiz, it would alter the easement, making it more burdensome.

SC: It is true that the owner of the dominant estate (DE), in making on the SE the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome (Art. 543 CC);

a.

This does not mean that the defendant cannot transport in the wagons passing upon the railroad other cane that of the plaintiffs. What is prohibited by the legal provision above cited is that the defendant, in excavations or building materials outside of the area of 7 meters, because in the first case, the easement will be altered, and in the second it would become more burdensome.

b.

Nothing of the kind happens when the defendant transport on the railroad, crossing the SEs, the cane of the planters of Cadiz; the railroad continues to occupy the same area on the SEs, and the encumbrance resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20 or 30 times a day transporting cane for the central.

c.

Also, at the time of the execution of the milling contracts, there was no intention of the part of the contracting parties to limit the use of the railroad to the transportation of cane grown by the plaintiffs in their respective haciendas, and that is because, while the duration of the milling contracts is fixed at 30 years, that of the easement is at 50.

Judgment appealed from must be REVERSED.

Fabie v. Lichauco

G.R. No. L-3598, July 24, 1908 Facts: Petitioner Miguel Fabie applied for the registration of his property in Manila free from any encumbrances except the easement of right of way in favor of respondents Julita Lichauco and Hijos de Roxas. In addition to the said right of way, respondents also claim that of light and view and drainage. However,the claim was later reduce only to that of the light and view. Lichauco cliamed that when Juan Bautista Coloma, the original owner of bothestates, established not only an easement of right of way but also that of light and view and that when both the properties were alienated, the apparent signs were not removed. The apparent sign allegedly consists of a gallery with windows through which light is admitted. It was supported on columns erected on the ground belonging to the petitioner and the balcony on Lichaucos property is supported by uprights erected on the land by petitioner. The parties admitted the existence of such gallery. The house was now a frontage of 18 meters and 60 centimeters, of which 16 meters and 60 centimeters correspond to the main part of the same, and 1 meter and 90 centimeters to the gallery in question. It results, therefore, that at the present day, the house has nearly 2 meters more frontage than when it was alienated by Coloma. Therefore, at the present day the house is erected partly on the land belonging to the owner and partly, the gallery, over a lot belonging to another; that is, over that of the petitioner. When it was sold in October, 1848, no portion of the house occupied the lot last mentioned, but the entire building was erected over a lot belonging to the owner as set forth in the instrument of sale. The lower court held that the right of way and drainage exist in favor of the respondents respective properties. The claim as to the easement of light and view was dismissed by the court. Issue: Whether or not Respondents are entitled to the easement of light and view. Held: No. The burden is not on the petitioner to prove on what time the gallery in controversy was constructed inasmuch as he limits himself to sustaining nad defending the freedom of his property, denying the easement o flight and view of the respondent pretends to impose over it. A property is assumed to be from all encumbrance unless the contrary is proved. Respondent who claims the said easement is obliged to prove the aforementioned gallery, in which the apparent sign of the easement is made to consist in the present case, existed at the time of ownership of her property and that of the petitioner were separated. And inasmuch as this issue has not been proved,the claim of the respondents as to the easements of the light and view which the petitioner does not admit, must of necessity be dismissed. Therefore, it does not appear from the agreement of the parties that the respondents has balconies over the land of the petitioner; and as it is, since it has been positively shown that the said balconies exceed the limit of the lot owned by the former, nor less that they invade the atmospheric area of the lot belonging to the latter, it follows that, even in accordance with the theory maintained by the respondents with which on account of its lack of basis, we consider it unnecessary to deal herein as to its other aspect, the easement of view, which might result in such case from the existence of the balconies alluded to, would be negative and not a positive one, because the erection of the same would not constitute, according to their own statement, an invasion of the right of another, but the lawful exercise of the right inherent to the dominion of the respondents to construct within their own lot. And as said easement is negative, it cannot have prescribed in favor of the property of the respondents in the absence of any act of opposition, according to theagreement, by which they or their principals would have prohibited the petitioner or his principals to do any work which obstruct the balconies in question, inasmuch as said act of opposition is what constitutes the necessary and indispensable point of departure for computing the time required by law for the prescription of negative easements. Thus, the judgment appealed from was affirmed in toto by the Court. TIBURCIO SAENZ, plaintiff-appellant, vs. FIGUERAS HERMANOS, defendant-appellee.

Antonio V. Herrero for appellant. Espiridion Guanco for appellee. JOHNSON, J.: It appears from the record that the plaintiff and the defendant own adjoining lots within the municipality of Iloilo; that the defendant had constructed or was constructing a house of strong materials upon its lot; that the line of the said house on the side toward the lot belonging to the plaintiff was less than two meters from dividing line of the two lots; that the said house was of two stories; that on the side of the house toward the lot of the plaintiff, the defendant in the first story had placed three windows and in the second story had placed five windows, each looking directly upon the lot of the plaintiff; and that the defendant had not obtained the permission of the plaintiff to place the said windows and balconies in the manner above indicated. The defendant filed a general and a special denial. In its special denial the defendant alleged that its house was being constructed in accordance with the law and customs of the place.

After the hearing the evidence adduced during the trial of said cause, the lower court made the following findings of fact: The plaintiff's lot is now vacant but he intends to build a house thereon for business purposes, and with that end in view has already deposited some lumber in said lot. The defendants have constructed a two-story house on their lot, using the ground floor for stores, and the upper floor as a dwelling. They have erected said house at a distance of 71 centimeters from the dividing line at the front part, and at a distance of 70 centimeters at the rear. The house of the defendants is being put to the use for which it was built. The defendants have opened three windows on the ground floor of their house, in the part that overlooks the lot of the plaintiff, each window being 1 meter and 20 centimeters wide and 2 meters high; on the upper floor they have opened 5 windows, each 2 meters and 11 centimeters high and 1 meter and 60 centimeters wide; they have also constructed a balcony at the front part of the house above the ground floor, opening directly upon the lot of the plaintiff, and another balcony at the rear part of the house, which up to the present time opens directly upon the plaintiff's lot, although the defendants state that, according to the plan, said part is to be closed with boards. All of said windows are required for the proper lighting and ventilation of said house, and for the circulation of air therein. The house of the defendants is 23 meters long and built almost parallel to the dividing line between the plaintiff's lot and that of the defendants. All of said windows and balconies are at a distance of less than one meter from the dividing line of the plaintiff's lot and that of the defendants, and are looking directly over the same. The plaintiff claims that, under articles 581 and 582 of the Civil Code, the defendant is prohibited from constructing his house and opening the windows and balconies looking directly upon his property in the manner above described, and prays that the court issue an order directing the defendant to close said windows and that the said defendant be prohibited perpetually from constructing openings in its house except in conformity with said articles of the Civil Code. The lower court, after a full consideration of the evidence adduced during the trial of the cause and after making the above findings of fact, concluded his sentence in the following language: In view of the circumstances mentioned above, and although I find that the windows of the house come within the prohibition contained in article 582 of the Civil Code, I am of the opinion that the plaintiff is not entitled to the judgment asked for, or for any other judgment in his favor. Therefore, it is ordered that judgment be entered in favor of the defendant for the recovery of the costs herein. (Signed) Henry C. Bates, judge of the Ninth Judicial District. From this sentence the plaintiff appealed. No motion was made for a new trial in the court below. The plaintiff excepted only to the judgment of the lower court, basing his objection upon the ground that the sentence of the lower court was contrary to the provisions of said article 582, and in this court insists that he has a right under said provisions of the Civil Code to have said windows closed and to have the defendant prohibited from making openings in the side of the house overlooking his yard except those openings provided for under said article. Article 581 of the Civil Code is as follows: ART. 581. The owner of a wall which is not a party wall, adjoining another's estate, may make in it windows or openings to admit light, at the height of the ceiling joists or immediately under the ceiling, of the dimensions of thirty centimeters square, and, in any case, with an iron grate embedded in the wall and a wire screen. However, the owner of the house or estate adjoining the wall in which the openings are made may close them, if he acquires the part ownership of the wall and should there be no agreement to the contrary. He may also obstruct them by building on his land or raising a wall adjacent to that having such opening or window. Article 582 of the Civil Code provides as follows: ART. 582. Windows with direct views, or balconies or any similar openings projecting over the estate of the neighbor, can not be made if there is not a distance of, at least, two meters between the wall in which they are built and said estate.

Neither can side nor oblique views be opened over said property, unless there is a distance of sixty centimeters. The foregoing provisions of the Civil Code enumerate the conditions under which an adjoining lot owner may enjoy the easement of light and view. These provisions are positive and persons attempting to exercise easement of light and view upon property of adjoining landowners are governed by its provisions. Said article 582 absolutely prohibits the construction of windows with direct views, or balconies or any similar openings projecting over adjoining property, unless there is a distance of at least 2 meters between the wall in which they are built and the adjoining property. The evidence adduced during the trial in the court below was not brought here. Therefore, we are governed as to the facts by the findings of the lower court. The lower court found that the distance between the wall of the house of the defendant and the dividing line between the two lots was only 71 centimeters. The defendant, therefore, has violated the provisions of said article 582 by building in his house nearer the line of the property of the plaintiff than a distance of 2 meters. Said article 581 provides the character of windows or openings in a wall adjoining the property of another when such wall is constructed nearer the dividing line of the two properties than 2 meters. In the present case the defendant constructed his house so that the wall looking upon the property of the plaintiff was less than 2 meters from the dividing line. He can, therefore, only construct such windows as are provided for in said article 581. The lower court bases his conclusions largely upon the fact that the plaintiff had stood by and permitted the defendant to construct, or partially construct, his house without having made any objections, as well as the further fact that the plaintiff had received no damages whatever except purely sentimental damages. The first ground would seem to imply that the lower court was of the opinion that the plaintiff was estopped from insisting upon his rights under the law, he having permitted the defendant to partially construct the house in the manner above described. There is nothing in the decision of the lower court which shows that the plaintiff at any time before the commencement of the present action knew that the house of the defendant was being constructed in violation of the provisions of said above-quoted articles. It was the duty of the defendant to construct his house in accordance with the provisions of the law. The plaintiff was not obliged to stand by for the purpose of seeing that the defendant had not violated the law. There are many cases where the doctrine of estopped may be invoked against one who claims a right where he has stood by and either expressly or tacitly given his consent to a violation of his right by another. This doctrine, however, can not be invoked where the law imposes an express duty upon the other person and prohibits him from the exercise of certain acts in a certain way. The defendant only can blame himself for not constructing his house in the manner provided for by law under the facts in the present case. (See decision of the supreme court of Spain, June 6, 1892; 4 Manresa, 734, 735, 736-739; 9 Alcubilla, 541.) Under all of the facts and the law presented in the present case, we are of the opinion, and so hold, that the defendant is not entitled to the easement of light and view which the windows and openings, which he was made in the house in question, give him, and, because of the fact that he has constructed his houses nearer than 2 meters to the dividing line between his property and the property of the plaintiff, he is only entitled to the easement of light and view provided for in said article 581 above quoted. Therefore, let a judgment be entered reversing the judgment of the lower court with costs, and directing the defendants, within a period of thirty days from the receipt of the notice of this decision, to close the said openings and windows, in the said house, looking directly upon the property of the plaintiff. So ordered. Arellano, C. J., Torres, Carson, and Moreland, JJ., concur.
GARGANTOS vs. TAN YANON AND COURT OF APPEALS Date: June 30, 1960 Ponente: Justice Gutierrez David Petitioners: Juan Gargantos Respondents: Tan Yanon, CA DOCTRINE Where two adjoining estates are formerly owned by one person who introduced improvements thereon,

and at the time of sale of one estate there existed on the wall windows and doors as passages for light and view, there being no provision in the deed of sale that the easement of light and view will not be established, Article 624 of New Civil Code applies. While Article 624 declares that the easement is to continue, the easement actually arises for the first time only upon alienation of either estate since before that time there is no easement to speak of, there being only one owner of both estates

FACTS 1. Francisco Sanz former owner of a parcel of land (888 sq m) located in Romblon Sanz subdivided the lot into three and sold each portion: a. 1st portion Guillermo Tengtio who subsequently sold to Vicente Uy Veza nd 2 portion (with house of strong materials which has on its northeastern side, doors and windows overlooking rd 3 portion) respondent Tan Yanon rd 3 portion (with camarin and small buildings)- after several transfers, finally acquired by petitioner Juan Gargantos 2. April 23, 1955 Gargantos applied to the Municipal Mayor of Romblon for permit to demolish camarin; granted 3. May 11, 1955 Gargantos asked for another permit to construct a combined residential house and warehouse on his lot; opposed by Tan Yanon Because both the provincial fiscal and district engineer recommended granting of the permit, Tan Yanon filed a case against Gargantos to restrain latter from constructing building that would prevent Tan Yanon from receiving light and enjoying view thru windows of his house, unless such building is erected at a distance of not less than 3 meters from the boundary line 4. CFI dismissed; ordered Tan Yanon to pay P12,500 damages to Gargantos CA set aside; enjoined Gargantos from constructing his building unless he erects the same at a distance of not less than 3 meters from boundary line in conformity with Article 673 Gargantos filed petition for review of CAs decision Gargantos ARGUMENT respondent never acquired any easement either by title or by prescription ISSUE WON the property of respondent Tan Yanon has an easement of light and view against the property of petitioner Gargantos? YES RULING CA decision AFFIRMED RATIO Article 621 (counting of prescriptive period) and the doctrine in the Yu-Tibo case not applicable because the estates here were formerly owned by just one person, Sanz who introduced improvements on both properties

This case is covered by Article 624 which provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of the two estate is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed. Windows and doors already in existence when Tan Yanon purchased the house and lot Deed of sale did not provide that the easement of light and view would not be established Existence of the windows and doors equivalent to title While law declares that easement is to continue, the easement actually arises for the 1st time only upon alienation since prior to that, there was only one owner

TANEDO vs. BERNAD Date: August 30, 1988 Ponente: Justice Padilla Petitioners: Eduardo Tanedo Respondents: Judge Bernad, Spouses Sim, Spouses Cardenas DOCTRINE Alienation of the dominant and servient estates to different persons is not one of the grounds for extinguishment of an easement. Absent a statement abolishing or extinguishing an easement in deed of sale, its use is continued by operation of law (Article 624). New owners of the servient estate cannot impair the use of the servitude FACTS 1. Respondent Antonio Cardenas owner of 2 contiguous parcels of land located in Cebu City a. Lot 7501-A (140 sq m) Lot 7501-B (612 sq m) 2. Lot 7501-A consists of an apartment building, a small portion of which stands on Lot 7501-B Lot 7501-B consists of a 4-door apartment, a 2-storey house, a bodega and a septic tank for the common use of occupants of the two lots Feb 5, 1982 Antonio Cardenas sold Lot 7501-A to petitioner Eduardo Tanedo; mortgaged Lot 7501-B to Tanedo to secure payment of P10,000 loan 3. Cardenas agreed that he would sell Lot 7501-B only to Tanedo in case he should decide to sell it; this was confirmed in a letter where Cardenas asked Tanedo not to deduct the loan from purchase price of Lot 7501-A in consideration of the promise to sell 4. Cardenas sold Lot 7501-B to respondent spouses Romeo and Pacita Sim Tanedo offered to redeem property but Romeo Sim refused Romeo Sim blocked the sewage pipe connecting the building of Tanedo to the septic tank; asked Tanedo to remove portion of his apartment encroaching on Lot 7501-B Invoking Article 622, Tanedo filed for legal redemption with writ of preliminary injunction The Sims claimed that they are the absolute owners of Lot 7501-B; Tanedo no right to redeem as land sought to be redeemed bigger than land owned Cardenas admitted his promise to sell to Tanedo; claimed that deed of sale in favour of the Sims was only intended as an equitable mortgage 5. RTC dismissed ISSUE WON petitioner Tanedos right to continue to use the septic tank ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest? NO RULING RTC decision REVERSED and SET ASIDE. RTC directed to proceed with the trial of case on the merits RATIO Article 631 enumerates grounds for extinguishment of easement the alienation of the dominant and servient estates to different persons is not a ground for the extinguishment of an easement Use of the said easement continued by operation of law as provided in Article 624 No statement abolishing or extinguishing the easement of drainage mentioned in the deed of sale to Tanedo Cardenas did not stop the use of the drain pipe and septic tank by the occupants of Lot 7501A before he sold lot to Tanedo Accordingly, spouses Sim as the new owner of the servient estate cannot impair the use of the servitude Note: SC agreed that Tanedo cannot exercise right of redemption since lot sought to be redeemed has an area bigger than what was owned

AYALA DE ROXAS vs. CITY OF MANILA Date: November 10, 1907 Ponente: Chief Justice Arellano Plaintiffs: Carmen Ayala de Roxas, Pedro Roxas Defendants: City of Manila, Robert Dieck (city engineer) DOCTRINE Based on the Law of Waters, owner of a property bordering on the stream has to bear the easement upon prior indemnity. As provided by the Civil Code and by the Law of Waters, administrative authority does not extend to the establishment of new easements upon private property, but simply to the preservation of old ones, when a recent and easily proven usurpation exists. No one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after proper indemnity; if this requisite has not been fulfilled the courts must protect, and eventually restore possession to the injured party (remedy against unlawful imposition of a servitude upon private property). FACTS 1. Plaintiff Ayala de Roxas owner of the a property situated in Escolta, eastern boundary of which adjoins the canal of San Jacinto or Sibacon to the extent of 23.5 meters (total area of ground = 658.19 sq m) 2. Jan 15, 1906 Ayala de Roxas applied to the city engineer Robert Dieck for a license to construct a terrace over the strip of land 3 meters in width between main wall of her house and the edge of canal, which strip belongs exclusively to her 3. Dieck refused to grant license Similar petition addressed to the Municipal Board of Manila; also denied Reason for denial intent to reserve strip for the establishment of a public easement place for discharging and landing goods place of shelter for shipwrecked persons and for fishermen towpath for craft passing through canal 4. Board has no intention to indemnify owners of such strips by reason of the use which parties landing thereon may make of the same 5. Act of the defendants based on an ordinance which they consider is pursuant to the provisions of the Law of Waters and of the Civil Code ISSUE 1. WON the ordinance is pursuant to the provisions of the Law of Waters and of the Civil Code? NO 2. WON the Municipal Board of Manila has the authority to impose new easements upon private property? NO WON Ayala de Roxas should be granted a license to construct terrace? YES RULING Writ GRANTED. Defendants ordered to issue license to Ayala de Roxas RATIO 1. Ordinance not pursuant to law because the provisions of the Law of Waters provide that the owner of the riverside property supports the easement upon being previously indemnified for loss and damage 2. The powers of the administration do not extend to the establishment of new easements upon private property but simply to preserve old ones, whenever a recent and easily proven usurpation exists Any order issued by ayuntamientos imposing an easement upon private property cannot be held to have been issued in the exercise of lawful authority 3. No one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after proper indemnity; if this requisite has not been fulfilled the courts must protect, and eventually restore possession to the injured party

NICOLAS LUNOD, ET AL., plaintiffs-appellees, vs. HIGINO MENESES, defendant-appellant. T. Icasiano, for appellant.

R. Salinas, for appellee. TORRES, J.: On the 14th of March, 1904, Nicolas Lunod, Juan de la Vega, Evaristo Rodriguez, Fernando Marcelo, Esteban Villena, Benito Litao, Ventura Hernandez, and Casimiro Pantanilla, residents of the town of Bulacan, province of the same name, filed a written complaint against Higino Meneses, alleging that they each owned and possessed farm lands, situated in the places known as Maytunas and Balot, near a small lake named Calalaran; that the defendant is the owner of a fish-pond and a strip of land situated in Paraanan, adjoining the said lake on one side, and the River Taliptip on the other; that from time immemorial, and consequently for more than twenty years before 1901, there existed and still exists in favor of the rice fields of the plaintiffs a statutory easement permitting the flow of water over the said land in Paraanan, which easement the said plaintiffs enjoyed until the year 1901 and consisted in that the water collected upon their lands and in the Calalaran Lake flow through Paraanan into the Taliptip River. From that year however, the defendant, without any right or reason, converted the land in Paraanan into a fishpond and by means of a dam and a bamboo net, prevented the free passage of the water through said place into the Taliptip River, that in consequence the lands of the plaintiff became flooded and damaged by the stagnant waters, there being no outlet except through the land in Paraanan; that their plantation were destroyed, causing the loss and damages to the extent of about P1,000, which loss and damage will continue if the obstructions to the flow of the water are allowed to remain, preventing its passage through said land and injuring the rice plantations of the plaintiffs. They therefore asked that judgment be entered against the defendant, declaring that the said tract of land in Paraanan is subject to a statutory easement permitting the flow of water from the property of the plaintiffs, and that, without prejudice to the issuing of a preliminary injunction, the defendant be ordered to remove and destroy the obstructions that impede the passage of the waters through Paraanan, and that in future, and forever, he abstain from closing in any manner the aforesaid tract of land; that, upon judgment being entered, the said injunction be declared to be final and that the defendant be sentenced to pay to the plaintiffs an indemnity of P1,000, and the costs in the proceedings; that they be granted any other and further equitable or proper remedy in accordance with the facts alleged and proven. In view of the demurrer interposed by the plaintiffs to the answer of the defendant, the latter, on the 29th of August, 1904, filed an amended answer, denying each and everyone of the allegations of the complaint, and alleged that no statutory easement existed nor could exist in favor of the lands described in the complaint, permitting the waters to flow over the fish pond that he, together with his brothers, owned in the sitio of Bambang, the area and boundaries of which were stated by him, and which he and his brothers had inherited from their deceased mother. Apolinara de Leon; that the same had been surveyed by a land surveyor in September, 1881, he also denied that he had occupied or converted any land in the barrio of Bambang into a fishpond; therefore, and to sentence the plaintiffs to pay the costs and corresponding damages. Upon the evidence adduced by both parties to the suit, the court, on the 13th of March, 1907, entered judgment declaring that the plaintiffs were entitled to a decision in their favor, and sentenced the defendant to remove the dam placed on the east of the Paraanan passage on the side of the Taliptip River opposite the old dam in the barrio of Bambang, as well as to remove and destroy the obstacles to the free passage of the waters through the strip of land in Paraanan; to abstain in future, and forever, from obstructing or closing in any manner the course of the waters through the said strip of land. The request that the defendant be sentenced to pay an indemnity was denied, and no ruling was made as to costs. The defendant excepted to the above judgment and furthermore asked for a new trial which was denied and also excepted to, and, upon approval of the bill of exceptions, the question was submitted to this court. Notwithstanding the defendant's denial in his amended answer, it appears to have been clearly proven in this case that the lands owned by the plaintiffs in the aforesaid barrio, as well as the small adjoining lake, named Calalaran, are located in places relatively higher than the sitio called Paraanan where the land and fish pond of the defendant are situated, and which border on the Taliptip River; that during the rainy season the rain water which falls on he land of the plaintiffs, and which flows toward the small Calalaran Lake at flood time, has no outlet to the Taliptip River other than through the low land of Paraanan: that the border line between Calalaran and Paraanan there has existed from time immemorial a dam, constructed by the

community for the purpose of preventing the salt waters from the Taliptip River, at high tide, from flooding the land in Calalaran, passing through the lowlands of Paraanan; but when rainfall was abundant, one of the residents was designated in his turn by the lieutenant or justice of the barrio to open the sluice gate in order to let out the water that flooded the rice fields, through the land of Paraanan to the above-mentioned river, that since 1901, the defendant constructed another dam along the boundary of this fishpond in Paraanan, thereby impeding the outlet of the waters that flood the fields of Calalaran, to the serious detriment of the growing crops. According to article 530 of the Civil Code, an easement is charge imposed upon one estate for the benefit of another estate belonging to a different owner, and the realty in favor of which the easement is established is called the dominant estate, and the one charged with it the servient estate. The lands of Paraanan being the lower are subject to the easement of receiving and giving passage to the waters proceeding from the higher lands and the lake of Calalaran; this easement was not constituted by agreement between the interested parties; it is of a statutory nature, and the law had imposed it for the common public utility in view of the difference in the altitude of the lands in the barrio Bambang. Article 552 of the Civil code provides: Lower estates must receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stone or earth which they carry with them. Neither may the owner of the lower estates construct works preventing this easement, nor the one of the higher estate works increasing the burden. Article 563 of the said code reads also: The establishment, extent, form, and conditions of the easements of waters to which this section refers shall be governed by the special law relating thereto in everything not provided for in this code. The special law cited in the Law of Waters of August 3, 1866, article 111 of which, treating of natural easements relating to waters, provides: Lands situated at a lower level are subject to receive the waters that flow naturally, without the work of man, from the higher lands together with the stone or earth which they carry with them. Hence, the owner of the lower lands can not erect works that will impede or prevent such an easement or charge, constituted and imposed by the law upon his estate for the benefit of the higher lands belonging to different owners; neither can the latter do anything to increase or extend the easement. According to the provisions of law above referred to, the defendant, Meneses, had no right to construct the works, nor the dam which blocks the passage, through his lands and the outlet to the Taliptip River, of the waters which flood the higher lands of the plaintiffs; and having done so, to the detriment of the easement charged on his estate, he has violated the law which protects and guarantees the respective rights and regulates the duties of the owners of the fields in Calalaran and Paraanan. It is true that article 388 of said code authorizes every owner to enclose his estate by means of walls, ditches fences or any other device, but his right is limited by the easement imposed upon his estate. The defendant Meneses might have constructed the works necessary to make and maintain a fish pond within his own land, but he was always under the strict and necessary obligation to respect the statutory easement of waters charged upon his property, and had no right to close the passage and outlet of the waters flowing from the lands of the plaintiffs and the lake of Calalaran into the Taliptip River. He could not lawfully injure the owners of the dominant estates by obstructing the outlet to the Taliptip River of the waters flooding the upper lands belonging to the plaintiffs. It is perhaps useful and advantageous to the plaintiffs and other owners of high lands in Calalaran, in addition to the old dike between the lake of said place and the low lands in Paraanan, to have another made by the defendant at the border of Paraanan adjoining the said river, for the purpose of preventing the salt waters of the Taliptip River flooding, at high tide, not only the lowlands in Paraanan but also the higher ones of Calalaran and its lake, since the plaintiffs can not prevent the defendant from protecting his lands against the influx of salt water; but the defendant could never be permitted to obstruct the flow of the waters through his lands to the Taliptip River during the heavy rains, when the high lands in Calalaran and the lake

in said place are flooded, thereby impairing the right of the owners of the dominant estates. For the above reasons, and accepting the findings of the court below in the judgment appealed from in so far as they agree with the terms of this decision, we must and do hereby declare that the defendant, Higino Meneses, as the owner of the servient estate, is obliged to give passage to and allow the flow of the waters descending from the Calalaran Lake and from the land of the plaintiffs through his lands in Paraanan for their discharge into the Taliptip River; and he is hereby ordered to remove any obstacle that may obstruct the free passage of the waters whenever there may be either a small or large volume of running water through his lands in the sitio of Paraanan for their discharge into the Taliptip River; and in future to abstain from impeding, in any manner, the flow of the waters coming from the higher lands. The judgment appealed from is affirmed, in so far as it agrees with decision, and reversed in other respects, with the costs of this instance against the appellants. So ordered. Carson, Willard and Tracey, JJ., concur. CRISPINA SALAZAR, petitioner, vs. GUILLERMO GUTIERREZ, and DAMASO MENDOZA, respondents. Jaime L. Guerrero and Renato B. Bercades for petitioner. Taada, Teehankee & Carreon and Jose P. Santillan for respondents. MAKALINTAL, J.: Judgment was rendered by the Court of First Instance of Bataan (Civil Case No. 2269) in favor of the plaintiff, Crispina Salazar, now petitioner; on appeal by the defendants, Guillermo Gutierrez and Damaso Mendoza, the Court of Appeals reversed (CA-G.R. No. 19489-R); and the plaintiff elevated the case to us for review bycertiorari. Crispina Salazar is owner of a piece of land (Lot 436 of the Cadastral Survey of Balanga) situated in Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title 1578 issued by the Register of Deeds of the said province, and acquired by her from the Municipality of Balanga on May 4, 1949. The lot is bounded on the northeast by Lot 361, on the southeast by Sapang Tuyo, on the southwest by Lot 435, and on the northwest by Lot 433. Lot 433 was registered under the Torrens system on July 23, 1923, with Original Certificate of Title 2162. Ownership passed to respondent Guillermo Gutierrez by inheritance in 1927, and Transfer Certificate of Title No. 1059 was issued in his name on June 11, 1928. No annotation of any lien or encumbrance affecting the land appears on either title. Before the present controversy arose, Lot 436 and some of the surrounding estates, including Lot 433, were irrigated with water from Sapang Tuyo, a public stream, flowing through a dike that traversed Lots 431, 434, 433 and 461. The portion of this dike that passed through Lot 433 branched near the boundary between this lot and Lot 434 into a canal which ran across the rest of Lot 433 up to Lot 436. It was with the water flowing through this canal that Lot 436 used to be irrigated. On February 24, 1953 respondent Damaso Mendoza, a lessee of Lot 433, demolished the said canal, thereby stopping the flow of the water and depriving Crispina Salazar's Lot 436 of the irrigation facilities which it had formerly enjoyed. Her requests that the canal be rebuilt and the water flow restored having been turned down, Salazar commenced the present suit on March 2, 1953, praying that these reliefs be granted her by the Court and that the defendants be ordered to pay her actual damages in the sum of P900, moral damages in the sum of P5,000, and P1,000 for attorney's fees, plus costs. The trial court issued a writ of preliminary injunction as prayed for by the plaintiff, ordering the defendants to restore the demolished portion of the canal and to refrain from again demolishing the same pending trial, but the writ was dissolved on March 9, 1953, upon a counterbond filed by the defendants. The latter answered with their own counterclaim for damages, denied the substantial averments of the complaint and put up a number of affirmative defenses.

After trial, the Court of First Instance of Bataan, finding that the demolished canal had been in existence for more than thirty years and that the big dike from which it extended had been constructed for the use of Lot 436 as well as several other lots belonging to different owners, rendered judgment on April 10, 1956, ordering the defendants to restore at their expense the canal in question, to connect it with the canal found in Lot 436 and to cause the corresponding annotation of the encumbrance on Transfer Certificate of Title 1059 covering Lot 433; and ordering the defendants to pay the plaintiff the sum of P1,360 annually beginning the agricultural year 1956-1957 until the restoration of the canal, P4,700 as actual damages, P5,000 as moral damages and P1,000 as attorney's fees, plus costs. On July 26, 1963, the Court of Appeals reversed the decision of the Court of First Instance and held that since the easement of aqueduct over Lot 433 for the benefit of Lot 436 was a voluntary one, the same was extinguished when Lot 433 was registered on July 23, 1923 and the corresponding certificate of title was issued without the annotation of said easement as a subsisting encumbrance. The respondents have raised a preliminary procedural question, alleging that Section 1 of Rule 46 (now Section 1 of Rule 45), requiring proof of service of a copy of the petition upon the Court of Appeals, was not complied with. Such omission, however, is not of jurisdictional import. In an appeal by certiorari upon a question of law, as distinguished from an original petition for certiorari under Rule 65, the Court of Appeals is merely a nominal party respondent. The original parties in the trial court are the same parties in the appeal. The main issue as set forth in the decision of the Court of Appeals is the nature of the easement of aqueduct claimed by the petitioner. If voluntary, according to the said Court, the easement was extinguished upon the registration of Lot 433 in 1923, pursuant to Section 39 of Act No. 496, which provides: But if there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate, or in any other manner. (Emphasis supplied). In arriving at the conclusion that the easement in question was voluntary and not legal or compulsory, the Court of Appeals took into consideration the provisions of Articles 557 and 558 of the Spanish Civil Code, now Articles 642 and 643 of the new Civil Code respectively, as follows: ART. 642. Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. ART. 643. One desiring to make use of the right granted in the preceding article is obliged: (1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; (2) To show that the proposed right of way is the most convenient and the least onerous to third persons; (3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations. Specifically the appellate court held that there is no evidence to show that the petitioner has complied with the three requisites laid down in Article 643 in order to entitle her to claim a legal easement of aqueduct under Article 642. It bears repeating that the finding thus made, although apparently factual in character, is premised upon supposed absence of evidence, and therefore is reviewed by this Court if the premise is clearly contradicted by the record or unjustified upon other considerations which logically lead to a different conclusion, but which the decision under review did not take into account. On the first requisite of Article 643 that the petitioner must prove that he can dispose of the water and that it is sufficient for the use for which it is intended there is the statement of the trial court that the disputed canal had been in existence since the Spanish regime, or at least prior to the original registration of Lot 433 in 1923, and that of the Court of Appeals itself confirmatory of this second alternative finding. If, as thus found, the petitioner had been using water from Sapang Tuyo to irrigate Lot 436 since she acquired said lot in 1949, as the Municipality of Balanga had been doing before her, and that such use had lasted

continuously for at least thirty years, it is a fair presumption that she had a right to do so and that the water she could dispose of was sufficient for the purpose. Indeed it would be a superfluity to require her to produce a permit from the proper authorities, for even without it the right had already become vested both under Article 194 of the Spanish Law of Waters and under Article 504 of the Civil Code, which respectively state: ART. 194. Any person who has enjoyed the use of public waters for a term of twenty years without objection on the part of the authorities or of any third person, shall continue in its enjoyment, even though he may not be able to show that he secured proper permission. ART. 504. The use of public waters is acquired: (1) By administrative concession; (2) By prescription for ten years. The extent of the rights and obligations of the use shall be that established, in the first case, by the terms of the concession, and, in the second case, by the manner and form, in which the waters have been used. The third requisite of Article 643 of the Civil Code refers to the matter of indemnity to the owner of the servient estate. As correctly pointed out by the petitioner it would be nigh impossible now to present actual proof that such indemnity has been paid, considering the number of years that have elapsed since the easement had first come into existence and the subsequent changes in ownership of the lots involved. It stands to reason, however, that if the easement had continued for so long in fact, not only before Lot 433 was registered in 1923 but for thirty years thereafter, until cut off by the respondents in 1953 the legal requirement in question must have been complied with. The other requisite of Article 643 is that "the proposed right of way is the most convenient and the least onerous to third persons." The Court of Appeals stated that the petitioner has not established this fact, and that "her own evidence reveals that her lot is abutting Sapang Tuyo on its southern boundary, where from she can easily and directly draw the water necessary to irrigate her land." This statement is an oversimplification. Proximity or abutment of a piece of land to a stream does not necessarily carry with it the conclusion that water may conveniently be drawn directly therefrom for irrigation. In the first place, the petitioner has pointed out in her brief, without contradiction by the respondents, that the portion of her land which abuts Sapang Tuyo is precipice. Secondly, the trial court made an ocular inspection of the premises and observed that the eastern and northeastern portions of Lot 436 are lower than the southwestern, western and northwestern (the point where Lot 436 adjoins Lot 433) portions of the same. Finally, it would appear from the observation made by the same court that the demolished canal is part of a system of conduits used to irrigate the lands of the petitioner and the respondents as well as the surrounding estates belonging to other owners, and that this system of conduits is of a permanent nature. The trial court's description bears repeating: At the ocular inspection conducted on September 22, 1953, it was found that the eastern and northeastern portions of Lot No. 436 are lower than the southern, western and northwestern portions of the same; that about one-fourth () only of the lot is planted to palay and this palay is yellowish, scarce and could hardly merit attention to produce any substantial quantity of palay; that this palay is planted in the eastern portion of the same; that the palay planted on the land of defendant Gutierrez and on the lot east of the land of the plaintiff is luxuriant green and had all the earmarks of producing a good harvest; that the "pinitak" on the northwestern portion of the land of the plaintiff is higher than the rest of the land; that on this portion is found a canal about one and a half (1-) meters deep which canal runs south and parallel to the boundary line of Lot 436 owned by the plaintiff and Lot No. 435 and is one and a half (1-) meters from this boundary; that along the southern boundary of Lot No. 433 that separates it from Lot No. 436 is a "minangon" or a dike and water flows continuously from one 'pinitak' to another of said Lot No. 433 up to a point between points "15" and "14" of said lot as shown on Exhibit "A" ... that this water passes from one "pinitak" to another through openings made on the "pilapils" or small dikes that separate the several "pinitaks" on this Lot No. 433; that the western side of the canal that was demolished is located on the boundary line of Lots Nos. 433 and 434 and this boundary line is higher and some trees are found therein; that the new canal ... is short and the old canal from point

"13" to about point "7" of Lot No. 433 on this exhibit is still in use although it is not clean; that Lot No. 434 owned by Antonio Mendoza is irrigated by two (2) pipes coming from Lot No. 431 and by a canal that comes from Lot No. 431 and by a canal that comes from the main irrigation canal located on the boundary line of these two (2) lots 431 and 434; that this main irrigation canal is the canal that goes through Lot No. 443 ... which canal ends farther east of Lot 448 ...; that this canal begins from the dam farther west of these Lots Nos. 431, 434, 433 and 436. xxx xxx xxx The boundary line of the two (2) lots Nos. 433 and 434 shows that it is a "minangon", a dike. It is extraordinarily high. From this situation, it can be concluded that the canal along this boundary line must be big. To irrigate the southern part of Lot No. 433 would not require a big and permanent canal if the same was used to irrigate the southern part of Lot No. 433. Canal marked "W" which is a substitute canal is small and shallow. From the remnants of the old and demolished canal, it is safe to assume that the canal has been in existence for a long time as shown by some big trees on the high "minangon." If it were to water only the southern part of the lot as claimed by defendants, it would have been the same in size as the new canal mark "W" on Exhibit "A." The construction of the new canal marked 'W' on the exhibit is a feeble attempt to justify the alleged purpose of the old canal, but this attempt at coverage is laid bare by the existence of the old canal that crossed Lot No. 433 ... Considering that the southern portion of said lot is lower than the rest of the same, the Court believes that the openings on the dike of the old canal would be sufficient to let water flow to the southern portions of this lot. The western portion of this lot could have been watered from the old canal ("X") or from the existing canal ("Z") on Exhibit "A". That being so, there is only one explanation why the old canal ("X") is in existence and that is for the use of Lot No. 436 and other lots farther east of Lot No. 436. It is a reasonable conclusion from the foregoing that the demolished canal supplying water to Lot 436 of the petitioner was merely extension of the system of conduits established long ago, considering that in view of the topography of the area and the proximity of the said lot to the main dike in Lot 433 it was more convenient to make the connection therewith than to draw water directly from Sapang Tuyo. Article 118 of the Spanish Law of Waters allows the creation of a compulsory easement of aqueduct for the purpose of establishing or extending an irrigation system, and there is nothing to the contrary in the Civil Code. In any case the respondents are hardly in a position to avail of the registration of Lot 433 in 1923 without the corresponding registration of the easement on the title as an excuse to summarily terminate it thirty years thereafter. The original registered owner allowed the easement to continue in spite of such nonregistration: the least that can be said is that he either recognized its existence as a compulsory servitude on his estate or voluntarily agreed to its establishment and continuance. And the respondent Guillermo Gutierrez, as the successor-in-interest to the, said owner by inheritance, is not an innocent third person who could plead the absence of annotation on the title. Not only was he aware of the existence of the easement when he inherited the property in 1927, but he likewise allowed it to continue for twenty-six years after he acquired title. He is bound both by the act of his predecessor and by his own. WHEREFORE, the decision of the Court of Appeals is set aside, and that of the Court of First Instance of Bataan affirmed, with costs against the respondents. Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Fernando, Barredo and Villamor, JJ., concur. Teehankee, J., took no part. Castro, J., is on leave. RUPERTO RELOVA, plaintiff-appellee, vs. ELENA LAVAREZ, ET AL., defendants-appellants. Gabriel and Borbon, for appellants. Julian Gerona, for appellee.

CARSON, J.: The plaintiff is the owner of a tract of rice land in the Province of La Laguna, which is cultivated with the aid of water brought from the River Bangcabangca, through an aqueduct which passes over the land of the defendants. On the land of the defendants there was a dam (presa) with a small gate or aperture in its face which was used to control the flow of the water in the aqueduct, by permitting a greater or less quantity to escape in a drainage ditch, also on the land of the defendants. In the month of May, 1905, one of the defendants completely destroyed the dam and let all the water escape by the drainage ditch, so that none flowed on the land of the plaintiff. At the time when the dam was destroyed the plaintiff had some five cavanes of land prepared to plant rice, but because of the escape of the water resulting from the destruction of the dam he was unable to raise his crop, which was a complete failure. Upon these facts found by the trial court, and upon the further fact that the aqueduct and dam in question had been in use by the plaintiff, as of right, for more than thirty years, and that he had an easement in the land of the defendants for the maintenance of the said aqueduct and dam, an injunction was granted to restrain the defendants from interfering with the plaintiff's right to the use of the water in the aqueduct, in the manner heretofore established by custom, and damages were awarded in favor of the plaintiff for the loss occasioned by the failure of his rice crop. The defendants and appellants make the following assignment of errors: First. The court erred in failing to find from the evidence the classification of the lands in question. Second. The court erred in failing to find that the land in question was all planted at the same time. Third. The court erred in finding that the plaintiff's easement for the maintenance of the dam was damaged by the opening of the drainage ditch in the month of May.
lawphil.net

Fourth. The court erred in finding that there was a servitude for the maintenance of the dam in question upon the land of the defendants in favor of the land of the plaintiff. In support of this assignment of errors counsel for the appellants contends that the evidence adduced in the trial establishes, first, that the plaintiff is not the owner of any lands watered by the aqueduct of the class known aspadagat (rice lands planted in May); second, that the plaintiff suffered no damage by the destruction of the dam, because all the lands of plaintiff which are cultivated with the aid of water from the aqueduct are of the class known as binanbang (rice lands planted in August or September), and the destruction of the dam in May and the consequent failure of water in the aqueduct at that period did not, and could not, damage the plaintiff or interfere with the proper cultivation of his lands; and, third, that the evidence of records does not establish the existence of the servitude in the lands of the defendants in favor of the lands of the plaintiff landowner for the maintenance of the aqueduct and dam in question. It will be seen that the first three of the errors assigned are directly to the findings of fact by the trial court, wherein it is held that the plaintiff is the owner of 5 cavanes of rice land which were prepared for cultivation in May, 1905, and which where rendered useless by the loss of water resulting from the destruction of the dam. Upon this point, however, the testimony of the plaintiff's witnesses is definite, certain, and positive, and we can not say that the findings of the trial court are contrary to the weight of the evidence. Counsel for the appellants lays great stress upon the fact that some of the plaintiff's witnesses stated that the lands of the plaintiff situated near the aqueduct are of the class known as binanbang (rice lands planted in August or September), while the portion of his lands situated farther west, watered from the bay and not from the aqueduct, is of the class known as padagat (rice lands planted in May). These statements, however, appear to be mere general description of the lands of plaintiff and are in no wise inconsistent with the positive and definite statements of the witnesses that a portion of the lands of the plaintiff, watered by the aqueduct, amounting 5 cavanes, was, in fact, prepared by the plaintiff for cultivation in May; and, unlike the greater part of the land described in the complaint, is of the class known as padagat and not binanbang. The fourth assignment of error can not be maintained in the light of the proof of record that the aqueduct and the dam (presa) have been in existence for more than thirty years, during which period the owner of the land in question has always exercised the right to the reasonable use of the water in the aqueduct for irrigation purposes. (Arts. 527 and 528, Civil Code.) Counsel for the appellants contend that under the definition of a servitude which appears in article 530 of

the Civil Code the existence of the servitude can not be established unless it appears that from such servitude a benefit (beneficio) was, or might be, derived by the plaintiff landowner; and that since it appears from the testimony of the witnesses that the aperture in the dam was used for the purpose of controlling the flow of water in the aqueduct and for preventing damage by overflow to the lowlands over which the aqueduct runs, and since it appears that the lands of the plaintiff are higher than the lands of the defendants, therefore the aqueduct could never have been intended for the supply of water to the lands of the plaintiff and neither the dam nor the aqueduct could be of any benefit to these lands. This contention can not be maintained in the face of the positive testimony as to the existence of the aqueduct and its use for many years to supply water to the lands in question. It may be that the defendants had a right to open the aperture in the face of the dam to prevent a destructive overflow of water on their lands, but this would not give them the right to stop the flow of water altogether; nor does it tend to establish the contention of the defendants that the plaintiff landowner is not entitled to the benefit of the reasonable use of the water flowing in the aqueduct, since it does not appear that such use necessarily involved destructive overflows from the aqueduct, provided the flow of water therein was properly regulated by the opening of the aperture in the dam. The judgment of the trial court authorizing the issue of the writ and awarding damages in favor of the plaintiff for the losses entailed by the destruction of the dam is affirmed, with the costs of this instance against the appellants. So ordered. Arellano, C.J., Torres, Johnson, Willard and Tracey, JJ., concur. G.R. No. 28491 September 29, 1928

TOMAS MONTEVERDE, plaintiff-appellant, vs. SEBASTIAN T. GENEROSO, Provincial Governor of Davao, ET AL., defendants-appellees. Jose Poblete, Rafael S. Castillo, Leon A. Garcia, Jose V. Diaz and Abad Santos, Camus, Delgado and Recto for appellant. Attorney-General Jaranilla for appellees. MALCOLM, J.: This is a case the determination of which could easily be made difficult by the injection of numerous controversial questions of fact and law, but which as we view it can readily be decided on a basic legal point arising from the undisputed facts and on a concession without decision of all disputed facts in favor of the Government. On this basis, the ultimate and decisive question is this: Is a provincial governor, a district engineer, or a district health officer authorized to destroy private property consisting of dams and fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance? The undisputed facts are these: Tomas Monteverde is the owner of a parcel of land situated in the barrio of Santa Ana, municipality of Davao, Province of Davao. He possesses a Torrens title to the land obtained in 1921. The parcel of land is bounded on the northwest by the Agdao River. The Tambongon Creek is a branch of the Agdao River and Runs through Monteverde's land. For fishpond purposes, Monteverde constructed two dams across the Agdao River and five dams across the Tambongon Creek. The two dams in the Agdao River were destroyed by order of the district engineer of Davao. The Provincial governor of Davao also threatened to destroy the other dams in the Tambongon Creek. The motive behind the destruction of the dams in the Agdao River and the proposed destruction of the dams in the Tambongon Creek was to safeguard the public health. To prevent the contemplated action with reference to the Tambongon Creek, Monteverde sought in the Court of First Instance of Davao to obtain an order of injunction in restraint of the provincial governor, the district engineer, and the district health officer, but in this attempt Monteverde was unsuccessful in the lower court. To the undisputed facts, there may be added for the purposes of the decision without necessarily having to resolve them the following: The fishponds were constructed in 1921 and 1922 and did not exist as the result of a concession in Spanish times. The Tambongon Creek running through Monteverde's property is navigable and as much is of public ownership. (See in this connection the cases of Samson vs. Dionisio

and Fabian [1908], 11 Phil., 538, and Bautista vs. Alarcon [1912], 23 Phil., 631.) The reason for the contemplated action by the provincial governor and the legal authority on which he relied are disclosed by the communication from the provincial governor to the plaintiff reading as follows: MR. Sta. Ana, Davao TOMAS MONTEVERDE

SIR: There have been referred to this office several complaints against you for having closed some of the branches of the Agdao River for fishpond purposes without previous authorization from competent authorities, thus obstructing the flow of water and causing the development of stagnant water which serves as suitable breeding places for mosquitoes. For the good of public sanitation, and by virtue of the authority conferred me by section 24 of the Water Law, you are hereby ordered, upon receipt hereof, to open all the ditches by destroying the dams so constructed therein as obstruction of the water flow, the construction of same not being in accordance with the law. Prompt compliance to this order is enjoined, otherwise, the district engineer will be ordered to effect the work at your costs. Very respectfully, (Sgd.) S.T. GENEROSO Provincial Governor Again emphasizing that the facts for the purposes of the appeal may be conceded to be as contended by the Government, we then must determine if any existing law authorizes the provincial governor and the other provincial officials to remove without a hearing or legal process any private construction on a navigable stream. The law is found in many places. There have been cited sections 938, 941, 978, 980, 995, 2592, 2594, 2604, and 2625 of the Administrative Code; section 39 of the Land Registration Act; articles 339, 344, 407, 412, and 490 of the Civil Code; and article 24 of the Spanish Law of Waters of 1866. With reference to this varied assortment of law, the flat statement is advanced without fear of contradiction that with the possible exception of article 24 of the Law of Waters no law expressly empowers the provincial governor to order the removal of obstructions and the destruction of nuisances in a navigable stream. On the contrary, the law specifically grants to the municipal council the power by ordinance or resolution "to declare, prevent, and abate nuisances." (Sec. 2625 [aa], Administrative Code; Bernardino and Zaplan vs. Governor and Provincial Board of Cavite [1910], 17 Phil., 176.) As to article 24 of the Spanish Law of Waters of 1866, it provides: "Any person may, upon his own private property, construct artificial ponds of sea water, having communication with the sea, for use as bathing places or vivaries, or for any other commercial or recreative purpose, notice thereof being given to the governor of the province. During two months, the governor shall have power to order the suspension of the work if, after consultation with the naval officer in command and the provincial engineer, it appear that the work might be substantially prejudicial to the public interests. In such an event the interested party may appeal to the Government." But as to the applicability of this article, it necessarily would have to conform to the principles of the existing public law. Nuisances are of two classes: Nuisances per se and per accidens. As to the first, since they affect the immediate safety of persons and property, they may be summarily abated under the undefined law of necessity. But if the nuisance be of the second class, even the municipal authorities, under their power to declare and abate nuisances, would not have the right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged to be maintaining or doing the same of the time and place of hearing before a tribunal authorized to decide whether such a thing or act does in law constitute a nuisance. Such in effect was the holding in Iloilo Ice and Cold Storage Co. vs. Municipal Council of Iloilo ([1913], 24 Phil., 471), applied here, it is self-evident that a dam or a fishery constructed in

a navigable stream is not a nuisance per se. Of course, a dam or a fishpond may be found to be a nuisance where it endangers or impairs the health or depreciates property by causing water to become stagnant. The public health may be conserved but conserved only in a legal manner. Due process of law must be observed before the citizens' property or personal rights or liberty can be interfered with. Conceding without deciding that article 24 of the Law of Waters is in force, we reiterate that it can only be made use of by conforming to the provisions of the organic law. The case of Lawton vs. Steele, originally decided in the Court of Appeals of New York and then taken to the United States Supreme Court, is the leading case on the subject. This was an action brought to recover the value of sixteen nets belonging to the plaintiffs which were destroyed by defendant. He, as a state fish and game protector, justified himself by citing the section of the law authorizing the seizure and removal of nets. The court recognized the legislative power to regulate fishing in public waters, and the right of summary abatement of nuisances without judicial process or proceeding for the protection of the health; but said the court: "In the process of abating a nuisance there are limitations both in respect of the agencies which may be employed, and as to what may be done in execution of the remedy." In the United States Supreme Court, it was in part said: It is not easy to draw the line between cases where the property illegally used may be destroyed summarily and where judicial proceedings are for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a custom officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act, as depriving him of his property without due process of law. But where the property is of trifling value, and its destruction is necessary to effect the object of a certain statue, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remarks might be made of the cards, chips, and dice of a gambling room. xxx xxx xxx Upon the whole we agree with the Court of Appeals in holding this act to be constitutional, and the judgment of the Supreme Court is, therefore, affirmed. (119 N.Y., 226; 152 U. S., 133.) In contrast with Lawton vs. Steele, supra, (1) there is no law authorizing the summary abatement of nuisances by the provincial governor; and (2) the dams and fishponds are not of trifling value. The question at issue is answered in the negative. In accordance with the foregoing, the judgment appealed from must be as it is hereby reversed, and instead the injunction prayed for shall issue prohibiting the defendants from destroying the dams and fishponds in question. It is so ordered without express finding as to cost in either instance. John, Street, Ostrand, Romualdez, and Villa-Real, JJ., concur. HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents. Quisumbing, Sycip, Quisumbing and Salazar for petitioner. Antonio M. Moncado for respondents. BENGZON, J.: This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were

not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning." The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8. The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (See 65 C.J.S., p. 455.) The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S., p. 458). Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.) In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170. Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual needs no further discussion. The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs. Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.

Separate Opinions PABLO, J., disidente: La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos indispensables a su fabrica de hielo; estan constuidos dentro de un solar que esta cercado pero con una puerta de entrada siempre abierta en donde pasan libremente los coches que distribuyen hielo y las personas que lo compran de la fabrica; cualquiera puede entrar sin distincion alguna, no hay ningun guardia en la puerta que impida la entrada de cualquiera persona. A dichos dos entanques tiene libre acceso el publico. Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria de precaucion para que los ninos de corta edad no pueden entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un pie de altura la superficie del terreno. El cerco puesto en el perimento del solar, con puerta continuamente abierta, no es suficiente medida para impedir que los ninos puedan meterse en los entanques. Ese cerco con su puerta abierta es como un velo transparente con que se cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico. Los nios son curiosos por naturaleza y los de ocho aos no tienen perfecto conocimiento de las cosas. Alucinados por la natural atraccion de las aguas, se meteran en ellas con peligro de sus vidas, a menos que exista algo que les impida. Voto con la confirmacion de la decision apelada.

[G.R. No. L-8191. February 27, 1956.] DIOSDADO A. SITCHON, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as City Engineer of the City of Manila, Respondent-Appellee. [G.R. No. L-8397. February 27, 1956] RICARDO DE LA CRUZ, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as City Engineer of the City of Manila, Respondent-Appellee. [G.R. No. L-8500. February 27, 1956] FELINO PEA, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as City Engineer of the City of Manila, Respondent-Appellee. [G.R. No. L-8513. February 27, 1956] SANTIAGO BROTAMONTE, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as City Engineer of the City of Manila, Respondent-Appellee. [G.R. No. L-8516. February 27, 1956] ERNESTO NAVARRO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as the City Engineer of the City of Manila, Respondent-Appellee. [G.R. No. L-8620. February 27, 1956] AMADO SAYO, ET AL., Petitioners-Appellants, vs. ALEJO AQUINO, in his capacity as City Engineer of the City of Manila, Respondent-Appellee.

DECISION CONCEPCION, J.: These are six (6) class suits against the City Engineer of Manila to enjoin him from carrying out his threat to demolish the houses of Petitioners herein, upon the ground that

said houses constitute public nuisances. In due course, the Court of First Instance of Manila rendered separate, but substantially identical, decisions adverse to the Petitioners, who have appealed therefrom directly to this Court. Inasmuch as the fact are not disputed and the same issues have been raised in all these cases, which were jointly heard before this Court, we deem it fit to dispose of the appeals in one decision. 1. Case No. L-8191 (Case No. 21530 of the Court of First Instance of Manila) was instituted by Diosdado A. Sitchon, Luis Gavino and Ponciano Adoremos, in their own behalf and in representation of twenty-two (22) persons, named in an annex to the petition. In 1947 and 1948, said Petitioners occupied portions of the public street known as Calabash Road, City of Manila, and constructed houses thereon, without the consent of the authorities. Later on, some of them paid concession fees or damages, for the use of said portions of the street, to a collector of the city treasurer, who issued receipts with an annotation reading: without prejudice to the order to vacate. On or about July 5, 1952, Respondent City Engineer advised and ordered them to vacate the place and remove their houses therefrom before August 5, 1952, with the warning that otherwise he would effect the demolition of said houses at their expense. This notice having been unheeded, a demolition team of the office of the City Engineer informed the Petitioners in December, 1953, that their houses would be removed, whereupon the case was instituted for the purpose already stated. At the instance of Petitioners herein, the lower court issued a writ of preliminary injunction.
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2. Case No. L-8397 (Case No. 21755 of the Court of First Instance of Manila) was brought by Ricardo de la Cruz, Isidro Perez and Fernando Figuerroa, in their behalf and in representation of two hundred sixty-seven (267) persons, who, sometime after the liberation of Manila, occupied portions of Antipolo and Algeciras Streets, of said city, and constructed houses thereon, without any authority therefor. Several Petitioners later paid concession fees or damages to a collector of the city treasurer, and were given receipts with the annotation: without prejudice to the order to vacate. The constructions were such that the roads and drainage on both sides thereof were obstructed. In some places, the ditches used for drainage purposes were completely obliterated. What is more, said ditches cannot be opened, repaired or placed in proper condition because of said houses. On or about May 15, 1952, Respondent City Engineer advised them to vacate the place and remove their houses within a stated period, with the warning already referred to. Hence, the institution of the case, upon the filing of which a writ of preliminary injunction was issued.
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3. Felino Pea, Francisco Morales and Jose Villanueva filed case No. L-8500 (Case No. 21535 of the Court of First Instance of Manila), on their own behalf and in representation of about thirty (30) persons, who, without the aforementioned authority, occupied portions of the street area of R. Papa Extension, City of Manila, sometime after its liberation. As in the preceding cases, several Petitioners paid concession fees or damages to a collector of the city treasurer, without prejudice to the order to vacate, which was given on May 10, 1952, with the warning that should they fail to remove said houses, Respondent would do so, at their expense. Upon being advised, later on, of the intention of Respondents agents to carry out said threat, the corresponding petition was filed and a writ of preliminary injunction secured. 4. Santiago Brotamonte, Godofredo Blanquiso and Salvador Justiniano commenced case No. L-8513 (Case No. 21531 of the Court of First Instance of Manila), on their behalf and in representation of forty-two (42) other persons, who, without any authority, occupied portions of the bed of a branch of the Estero de San Miguel, City of Manila, and constructed houses thereon, sometime in 1947 and 1948. As in the cases already mentioned, some of them paid concession fees or damages, without prejudice to the

order to vacate, which was given, with the usual warning, in December, 1953. The institution of the case and a writ of preliminary injunction soon followed. 5. In case No. L-8516 (Case No. 21580 of the Court of First Instance of Manila), Ernesto Navarro, Pablo Salas and Herminigildo Digap are Petitioners, on their own behalf and in that of fifteen (15) persons, who, sometime after the liberation of Manila, occupied portions of the bed of the Pasig River, at about the end of Rio Vista Street, San Miguel, Manila, which are covered and uncovered by the tide, and erected houses there on without any authority therefor. Concession fees or damages were paid by some of them, without prejudice to the order to vacate. After giving, on or about June 20, 1952, the corresponding notice and warning, which were not heeded, Respondent threatened to demolish said houses at Petitioners expense, whereupon the case was instituted and a writ of preliminary injunction secured. 6. Case No. L-8620 (Case No. 22143 of the Court of First Instance of Manila) was filed by Amado Sayo, Marciano Lamco and Victor Bernardo, on their behalf and in that of twentytwo (22) other persons, who, in 1946 and 1947, occupied portions of Torres Bugallon, Cavite, Misericordia and Antipolo Streets, in the City of Manila, and constructed houses thereon, without any authority therefor. Some paid monthly rentals and/or damages, and/or concession fees from 1946 to 1951, without prejudice to the order to vacate, which was given on May 1, 1952, with the usual warning, followed, about two (2) years later, by a threat to demolish said houses. Hence, the case, upon the filing of which writ of preliminary injunction was issued. After appropriate proceedings, the Court of First Instance of Manila rendered separate decisions, the dispositive part of which, except in case No. L-8620, is of the following tenor:
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Por tanto, el Juzgado sobresee esta causa por falta de meritos y ordena al ingeniero de
la ciudad de Maniia que haga la demolicion o la remocion de las citadas casas, dentro de quince dias despues de haber avisado al efecto a los aqui recurrentes, y a costa de los mismos. In said case No. L-8620, the lower court rendered judgment as follows:
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In view of the foregoing considerations the Court hereby declares:

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(a) that the houses of all Petitioners in this case erected on the land which forms part of
Torres Bugallon, Cavite, Misericordia and Antipolo Streets constitute public nuisance as defined by section 1112 of Ordinance No. 1600 of the City of Manila and by Article 694 paragraphs 4 and 5 of the Civil Code and

(b) that the City Engineer of the City of Manila is the official authorized by Article 1112
of Ordinance No. 1600 of the City of Manila and Article 699, paragraph 3 of the Civil Code to abate said public nuisance and charge the expenses thereof to Petitioners. Petitioners contend that said decisions should be reversed upon the ground that, in trying to demolish their respective houses without notice and hearing, the city engineer sought to deprive them of their property without due process of law, apart from the fact that, under Articles 701 and 702 of the new Civil Code, the power to remove public nuisances is vested in the district health officer, not in Respondent city engineer. It should be noted, however, that, before expressing his intent to demolish the houses in question, Respondent had advised and ordered the Petitioners to remove said houses, within the periods stated in the corresponding notices; that Petitioners do not question, and have not questioned, the reasonableness or sufficiency of said periods; and that
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they have never asked Respondent herein to give them an opportunity to show that their houses do not constitute public nuisances. Besides, it is not disputed that said houses are standing on public streets, with the exception of the houses involved in cases Nos. 8513 and 8516, which are built on portions of river beds. It is clear, therefore, that said houses are public nuisances, pursuant to Articles 694 and 695 of the Civil Code of the Philippines, which is Republic Act No. 386, reading:
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ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:
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(1) Injures or endangers the health or safety of others; (2) Annoys or offends the senses;
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or

or
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(3) Shocks, defies or disregards decency or morality;

body of water;
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or

(4) Obstructs or interferes with the free passage of any public highway or street, or any
or

(5) Hinders or impairs the use of property.

ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition. (Italics supplied.) It is true that Articles 700 and 702 of the same Code provide:
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ART. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. ART. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance. However, section 31 of Republic Act No. 409, the Revised Charter of the City of Manila, specifically places upon the city engineer the duty, among others, to have charge of the care of streets, canals and esteros ; to prevent the encroachment of private buildings on the streets and public places ; to have supervision of all private docks, wharves, piers and other property bordering on the harbor, rivers, esteros and waterways and issue permits for the construction, repair and removal of the same and enforce all ordinances relating to the same; to have the care and custody of all sources of water supply ; to cause buildings dangerous to the public to be ; torn down; and to order the removal of buildings and structures erected in violation of the ordinances . Obviously, articles 700 and 702 of Republic Act No. 386, should yield to said section 31 of Republic Act No. 409, not only because the former preceded the latter, but, also, because said section 31 of Republic Act No. 409 is a special provision specifically designed for the City of Manila, whereas said Articles 700 and 702 of the Civil Code are general provisions applicable throughout the Philippines. Moreover, section 1122 of the Revised Ordinance of the City of Manila (No. 1600) explicitly authorizes the action sought to be taken by Respondent herein, by providing:
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Whenever the owner or person responsible for any unauthorized obstruction shall, after
official notice from the proper department, refuse or neglect to remove the same within a reasonable time, such obstruction shall be deemed a public nuisance, and the city engineer is authorized to remove the same at the owners expense.

Again, houses constructed, without governmental authority, on public streets and waterways, obstruct at all times the free use by the public of said streets and waterways, and, accordingly, constitute nuisances per se, aside from public nuisances. As such, the summary removal thereof, without judicial process or proceedings may be authorized by the statute or municipal ordinance, despite the due process clause. (66 C.J.S. 733-734.)

The police power of the state justifies the abatement or destruction, by summary
proceedings, of whatever may be regarded as a public nuisance; and the legislature may authorize the summary abatement of a nuisance without judicial process or proceeding.
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The remedy of summary abatement for violation of a municipal ordinance may be used
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against a public nuisance. (66 C.J.S. 855, 856.)

When necessary to insure the public safety, the legislature may under its police power
authorize municipal authorities summarily to destroy property without legal process or previous notice to the owner.
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It is not an objection to the validity of a police regulation that it does not provide for a
hearing or for notice to the owner before his property is subjected to restraint or destruction. (12 Am. Jur. 356, 357.)

In the exercise of the police power the state may authorize its officers summarily to
abate public nuisances without resort to legal proceedings and without notice or a hearing. Municipal Corporations generally have power to cause the abatement of public nuisances summarily without resort to legal proceedings. (39 Am. Jur. 455, 456, 457.) Being in conformity with the facts and the law, the decisions appealed from are hereby affirmed in toto, and the writs of preliminary injunction issued by the lower court dissolved, with costs against Petitioners-Appellants. It is SO ORDERED. Paras, C.J., Padilla, Montemayor, Reyes, A. Jugo, Bautista Angelo, Labrador, Reyes, J. B. L. and Endencia., JJ., concur

VELASCO V. MANILA ELECTRIC

FACTS:
Velasco was the owner of 3 adjoining lots. He then sold two of these to Meralco who later constructed a substation. It was only separated from the house of petitioner by a wire fence.

HELD:
General rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for the resulting damage, being guilty of causing nuisance. The test is whether the rights of property, of health or of comfort are so injuriously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed upon him by the condition of living, or of holding property, in a particular locality in fact devoted to uses which involve the emission of noise although ordinary care is taken to confine it within reasonable bounds.

JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents.

Marciano C. Dating, Jr. and Jose & Fuentebella for petitioner. The Solicitor General for respondents. ESCOLIN, J.:

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Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner guilty of the crime of grave coercion, as follows:
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WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 in the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby ordered ACQUITTED. The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining witness and the store belonging to one Lourdes Pia-Rebustillos. These establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements. Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business. Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement. On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse. Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority. We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit:
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ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal A private nuisance is one that is not included in the foregoing definition.

The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per-se. Thus:
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Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing through the street and also of the unsanitary condition that is bred therein as well as the unsightly and ugly structures in the said place. Moreover, even if it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and living quarters for a number of years does not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any considerable number of persons and the general public which posed a danger to the people in general passing and using that place, for in addition, this is an annoyance to the public by the invasion of its rights the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487]. xxx xxx xxx ... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupied by the impleaded defendants are nuisances per se and therefore orders the defendants to demolish the stall and vacate the premises immediately ... But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a public nuisance without judicial proceedings.
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ART. 699. The remedies against a public nuisance are: [l] A prosecution under the Penal Code or any local ordinance; or [2] A civil action; or [3] Abatement, without judicial proceedings. In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then acted in good faith in the performance of his duty, petitioner incurred no criminal liability. Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the restraint was not made under authority of law or in the exercise of a lawful right. 2 The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged. Costs de oficio. SO ORDERED.
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Makasiar (Chairman), Aquino, Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.